State v. Newburg Special Road Dist.

• Decision Date: 14 January 1920
• Docket Number: No. 2576.,2576.
• Citation: 217 S.W. 605
• Parties: STATE ex rel. HEMMERLA v. NEWBURG SPECIAL ROAD DIST. OF PHELPS COUNTY et al.
• Court: Missouri Court of Appeals

217 S.W. 605

STATE ex rel. HEMMERLA v. NEWBURG SPECIAL ROAD DIST. OF PHELPS COUNTY et al.

No. 2576.

Springfield Court of Appeals. Missouri.

January 14, 1920.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Mandamus by the State, on relation of A. A. Hemmerla, against the Newburg Special Road District of Phelps County, Mo., and others. Judgment for defendants, and relator appeals. Affirmed.

J. J. Crites, of Rolla, and G. Detjen, of St. Louis, for appellant.

Lorts & Breuer, Holmes & Holmes, and J. A. Watson, all of Rolla, for respondents.

FARRINGTON, J.

This appeal is taken on account of the action of the trial court in sustaining a petition seeking to mandamus the defendants. In the first place, the respondents contend that the appeal taken in this case was premature, in that there was no final judgment entered in the cause. We have examined the record and find the following entry made (omitting caption):

"Demurrer to plaintiff's amended petition filed, and, on being taken up and argued, is by the court sustained, and plaintiff's petition dismissed. Whereupon it is considered by the court that plaintiff's petition be dismissed, and that defendants have and recover of and from plaintiff all costs in this behalf laid out and expended."

We hold that the point is not well taken and that the order made by the court, dismissing plaintiff's petition and adjudging the costs against him in defendants' favor, is a final judgment. In support of this rule we cite Moormeister v. Hannibal, 180 Mo. App. 717, 163 S. W. 926; Moody v. Deutsch, 85 Mo. 237; Lyons & Reesman v. Rollinson, 109 Mo. App. 68, 82 S. W. 646; Anable v. McDonald Land & Mining Co., 144 Mo. App. 303, 128 S. W. 38.

With this preliminary question out of the way, we will now attend to the merits presented. The plaintiff filed the following petition (omitting caption):

"The relator, A. A. Hemmerla, states that he is the assignee of record, for value, of the judgment rendered in this court in the matter of Newburg State Bank v. Newburg Special Road District of Phelps County, Missouri, a Corporation, S. J. Williams, J. H. Freeman, and J. K. Goin, in the sum of two hundred and sixty-four dollars and fifty cents ($264.50), the said judgment having been rendered on the 13th day of December, 1917, in favor of the said Newburg State Bank and against the said Newburg special road district, and this judgment is still wholly unpaid and unsatisfied; that on _____, an execution was issued on the said judgment from this court to the sheriff of Phelps county, Missouri, against the said Newburg special road district, and that said execution has been returned unsatisfied.

"This relator further states that the said Newburg special road district of Phelps county, Missouri, is and at all times herein mentioned was a body corporate, possessing the usual powers of a corporation for public purposes, organized and existing under the provisions of article six (6) of chapter one hundred and two (102) of the Revised Statutes of Missouri 1909, and capable of suing and being sued, contracting and being contracted with, and that W. F. Houk, H. W. Roach, and S. R. Brookshire are at present the duly appointed, qualified, and acting commissioners composing the board of commissioners of the said Newburg special road district of Phelps County, Missouri.

"This relator further states that he has no other remedy in this matter than that hereinafter asked for, that the said road district has no property subject to execution, and that the officers thereof, that is, the commissioners above named, have power and are by law authorized to require the county court of this county, by proper application, to draw warrants upon the county treasurer for said road district's share of the money collected as county taxes in Phelps county, Missouri, on property within such road district, or as dramshop, pool, or billiard table licenses on business within said road district, and that the money so received or to be received constitutes a general district road fund for working, repairing, and improving the public roads of such district, and the payment of all expenses, debts, demands, and obligations so and for said purposes incurred by said road district.

"Therefore this relator moves the court for a writ of mandamus requiring said special road district and W. F. Houk, H. W. Roach, and S. R. Brookshire, commissioners composing the board of commissioners of said road district, to pay the judgment in this case out of their general district road fund for the year 1918...